JUDGMENT 1. - This appeal, by the accused, is directed against the Judgment dated Nov. 29, 1988, of the Sessions Judge, Jalore, convicting and sentencing the appellant for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as `the Act') to 10 years R.I. and a fine of rupees one lac, in default of payment of fine to undergo further R.I. for one year. 2. On April 29, 1987, Shri Binjraj Singh, Station House Officer, Raniwada, received some information by a Mukhbir that the appellant was carrying on illegal business of opium and was expected to come in the bus carrying with him some opium. Shri Binjraj Singh proceeded towards village Kotda with the police party and took position near Bhati Suthoran ki Dhani. At about 2.30 p.m., they saw the appellant going on foot with a bag in his hand. The accused was stopped. The police found two packets with him which contained 4 kg. 660 grams of opium. The opium were seized and the accused arrested two samples of 30 gms each were taken and separately sealed. The First Information Report of the incident was lodged the same day by Shri Binjraj Singh at 5 p.m. at Police Station, Raniwada. The samples were sent to the State Forensic Science Laboratory, Rajasthan, Jaipur, for chemical examination. The Deputy Director of the State Forensic Science Laboratory opined that the two sample contained opium having 4.46% and 5.03% morphine content respectively. After investigation, the police submitted a charge-sheet in the Court of Judicial Magistrate, Bhinmal, who committed the accused for trial to the Court of Sessions Judge, Jalore. The accused was charged for the offence under Section 18 of the Act. He pleaded not guilty and claimed to be trial. 3. After trial, the Sessions Judge, by the Judgment dated Nov. 29, 1988, has convicted and sentenced the appellant as aforesaid. 4. Aggrieved, the appellant has filed the present appeal. 5. I have heard Shri Prema Ram Choudhary, counsel for the appellant, and Shri Vimal Mathur, Public Prosecutor for the State. Shri Choudhary has contended that the prosecution has examined 4 witnesses and all of them are police officials. No independent witness to corroborate the prosecution case has been produced in evidence. He has further contended that the evidence of the police witnesses is discrepant and contradictory on vital point. Shri Choudhary has contended that the prosecution has examined 4 witnesses and all of them are police officials. No independent witness to corroborate the prosecution case has been produced in evidence. He has further contended that the evidence of the police witnesses is discrepant and contradictory on vital point. He has also submitted that Shri Binjraj Singh who recovered and seized the goods, himself investigated the case. Shri Binj Raj Singh, argues learned counsel, stands in no better position than a complaint, and, therefore, the investigation done by him was tainted and vitiates the entire trial. 6. I find substance in the submissions made by the counsel for the accused. The spot from where the accused was stopped and arrested and the opium was recovered is not an isolated place but is surrounded by Dhani nearby. Independent witnesses could have easily been examined but were not by the prosecution. Only the police witnesses have been produced to establish its case. 7. Learned counsel for the appellant has invited my attention to Hanuman v. State of Rajasthan, Cr.L.R. 1987 page 804 where Hon'ble K. S. Lodha, J, held and observed as under:- "8. It is true that the witnesses cannot be discarded merely on the ground that they happen to be police officers as has been urged by the learned public prosecutor supported by the authorities relied upon him but when there are suspicious circumstances staring in the fact and of independent witnesses though could have been procured have not been put forward and the whole case is sought to be proved by the evidence of these police witnesses who themselves had captured the accused & allegedly recovered the offensive substance, the testimony of these witnesses cannot easily be relied upon and this is what the Hon'ble Supreme Court has stated in the latter case reported in Bhagwan Singh's case (Supra)." 8. The case of the defence was that the opium was recovered by the police from some other place and as they could not trace the real culprit they chose to implicate the appellant merely on suspicion. It is significant in the present case that the opium is said to have been recovered on April 29, 87 but the First Information Report reached to the learned Magistrate on 1st May, 87. Further, I am not impressed by the way the investigation in the case was conducted. It is significant in the present case that the opium is said to have been recovered on April 29, 87 but the First Information Report reached to the learned Magistrate on 1st May, 87. Further, I am not impressed by the way the investigation in the case was conducted. Shri Binjraj Singh was the person who, as per the prosecution case, stopped the accused and found in his possession the two packets containing opium. The First Information Report was also lodged by him. Obviously, therefore, the investigation of the case ought to have been entrusted to some other officer of higher rank. True, this infirmity by itself would not vitiate the trial but it does require the evidence to be weighed with caution. In Roland Markas Goonthar v. State of Rajasthan, Cr. L.R. page 678, 1988 Hon'ble D.L. Mehta, J has observed : "Investigating agency should normally be different from the person who appears as witness. Hanumansingh has stated that he seized the articles, he lodged the first information report and he deposited the same at the police station. There is no prohibition under the law which debars Hanumansingh from investigating the case further. However, it is expected that in such a case there should be investigation by any other agency, may be of superior rank." 9. In the present case where independent witnesses could have been examined but not produced and even the First Information Report was sent to the learned Magistrate after 2 days, it is difficult to sustain the conviction of the appellant on the evidence of police officers alone. 10. Looking to the circumstances of the case, I am of the opinion that the prosecution has failed to establish its case against the accused beyond a reasonable doubt. 11. The appeal is, therefore, allowed; the conviction and sentence of the appellant for the offence under section 18 of the Act is set aside and he is acquitted of the charge levelled against him. He is at present in Jail and he shall be released forthwith, if not required in any other case.Appeal allowed/Appellant acquitted. *******